UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) TOMMY J. WINSTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1411 (RWR) ) G. WAYNE CLOUGH, ) ) Defendant. ) _____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Tommy J. Winston, an employee of the Smithsonian
Institution (“Smithsonian”) filed a three-count complaint against
the Secretary of the Smithsonian,1 seeking damages under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 et seq., for
discrimination based on race and color, for retaliation, and for
a hostile work environment. (Am. Compl. ¶¶ 45-53.) The
Smithsonian moves under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) to dismiss Winston’s amended complaint or for
summary judgment. Because Winston failed to exhaust his
administrative remedies regarding his duty station transfer, but
otherwise amply pled claims of discrimination, retaliation, and a
hostile work environment, the Smithsonian’s motion will be
granted in part and denied in part.
1 Secretary G. Wayne Clough is substituted as the defendant under Federal Rule of Civil Procedure 29(d). -2-
BACKGROUND
Winston, an African American employee of the Smithsonian, is
a Facilities Management Specialist. He began his employment
there in 1995. (Am. Compl. ¶¶ 1, 21.) In January 2006, David
Samec, Winston’s supervisor, informed Winston that a colleague
named Kendra Gastright had accused him of threatening her with
violence during a meeting that occurred earlier in January. (Id.
¶ 22.) On January 23, 2006, Samec issued a memorandum to Winston
reassigning him effective on January 24, 2006 from the East Mall
Zone in Washington, D.C. to the Suitland Maryland Zone, a zone
that Winston claims Smithsonian employees refer to as the “Black
Zone.” Winston believed that the reassignment was temporary
because the memorandum did not state that the reassignment would
be permanent. However, Winston acknowledged receipt of the
memorandum and wrote on the bottom, “I do not concur. I feel my
right[s] have been violated.” (Id. ¶ 24; Def.’s Mem. in Supp. of
Mot. for Dismissal (“Def.’s Mem.”) Ex. 1.) After Winston
relocated on January 24, 2006 to the Suitland Zone, he ceased
performing duties related to his position in Washington, D.C. as
a facility maintenance manager, and instead performed various
functions of decreased responsibility, prestige, and importance.
(Am. Compl. ¶ 25.) On February 7, 2006, Samec issued to Winston
a proposal to suspend Winston for one day without pay, not for
any alleged threats of violence, but for acting “inappropriately -3-
and unprofessionally” during the January meeting by not complying
with Gastright’s request that he cease responding to her
sarcastically and teasing her. Winston alleges that the
memorandum proposing the suspension failed to mention Winston’s
equal employment opportunity (“EEO”) rights or how he could
appeal the one-day suspension through the EEO process. (Id.
¶¶ 26-27.)
Winston appealed the one-day suspension to a deciding
official named Nancy Bechtol, who reversed the suspension on
April 3, 2006 and instead imposed a “Confirmation of Counseling.”
(Am. Compl. ¶ 28.) Bechtol’s decision did not address Winston’s
reassignment to the Suitland Zone. (Id.) Winston alleges that
the Smithsonian treated him differently than it treated his non-
black colleagues, because Gastright, an Asian woman, was required
only to issue a written apology and was not reassigned or
effectively demoted after she uttered profanity and acted
disrespectfully toward her colleagues. (Id. ¶ 29.) Winston
contacted an EEO counselor on April 27, 2006 regarding his
transfer and Bechtol’s action. (Id. ¶ 5; Def.’s Mem. Ex. 4.) He
later filed in June 2006 a formal administrative complaint,
unsuccessfully pressing the same allegations with the agency and
later on appeal to the Equal Employment Opportunity Commission
(“EEOC”). (Am. Compl. ¶¶ 6-9; Def.’s Mem. Ex. 5.) -4-
According to Winston, at a weekly managers meeting held the
following year, Winston’s Suitland supervisor, Maurice Evans, put
two other employees, David Sidbury and James Cutler, in charge of
snow removal. Sidbury informed Evans that he wanted to place an
employee named Oscar Waters on his snow removal team, and Cutler
stated that he wanted an employee named James Taylor to be named
to his snow removal team. (Am. Compl. ¶¶ 31-32.) Evans
instructed Cutler that Taylor could assist him with snow removal,
but stated that Waters would not be allowed to participate in
snow removal. (Id. ¶ 33.) The following day, contrary to Evans’
directive, Sidbury enlisted Waters in snow removal. (Id.) Three
weeks later, Evans issued to Winston a proposal to suspend him
for seven days without pay for failing to inform Waters that he
should not report for snow removal, and for overusing a cellular
telephone. (Id. ¶ 36.) In April 2007, Bechtol issued a decision
upholding Evans’ recommendation to suspend Winston for seven days
without pay. Winston served his suspension in May of 2007.
According to Winston, several of his co-workers who were outside
of his protected class have used their cellular telephones more
than Winston used his, and were not disciplined for doing so.
(Id. ¶¶ 41-44.)
Winston filed this action on August 3, 2007. The amended
complaint alleges three violations of Title VII: discrimination
based upon race and color by transferring Winston to the Suitland -5-
Zone in 2006 and suspending him without pay for seven days
in 2007 (Count I); retaliation for his having filed his June 2006
formal complaint by suspending him for the seven days in 2007
(Count II); and discriminatory hostile work environment based in
part upon the actions complained of in Counts I and II
(Count III). (Am. Compl. ¶¶ 45-53.)
The Smithsonian moves to dismiss Winston’s amended complaint
or for summary judgment, arguing that Winston failed to timely
exhaust his administrative remedies for his claim of
discrimination based upon reassignment from Washington D.C. to
Maryland; failed to rebut in the amended complaint the legitimate
non-discriminatory reasons for his suspension; failed to
establish a temporal link between his protected activity and the
adverse employment action sufficient to support his claim of
retaliation; and failed to sufficiently allege a claim of
discriminatory hostile work environment because his hostile work
environment claim consists of a mere repetition of the same
discrete acts that form the basis of his other claims. Winston
opposes the Smithsonian’s motion, arguing that he timely
exhausted his administrative remedies regarding Count I or that
the deadline should be tolled because he lacked constructive
knowledge of the 45-day deadline; that pretext need not be pled
in a complaint; that he has pled evidence of a causal connection
between the protected activity and the adverse personnel action -6-
and that the length of time between them was sufficiently short
to infer the causal connection; and that the discrete acts and
the Smithsonian’s entire course of conduct that Winston cites
sufficiently support his claim of a hostile work environment that
was so severe or pervasive as to change the terms and conditions
of Winston’s employment.2
DISCUSSION
A complaint can be dismissed under Federal Rule of Civil
Procedure 12(b)(6) when a plaintiff fails to state a claim upon
which relief can be granted. Peavey v. Holder, 657 F. Supp. 2d
180, 185 (D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6)). “A
Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a
complaint.” Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d
123, 129 (D.D.C. 2009).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to “state a claim to relief that is plausible on its face.” . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). The
2 Winston also moves for leave to file a surreply. He argues that the Smithsonian did not raise until its reply its claim that Winston waived any argument that the deadline for contacting an EEO counselor should be tolled. His motion will be granted but the surreply will be considered only to the extent it addresses this issue. -7-
complaint must be construed in the light most favorable to the
plaintiff and “the court must assume the truth of all
well-pleaded allegations.” Warren v. District of Columbia, 353
F.3d 36, 39 (D.C. Cir. 2004). In deciding a motion brought under
Rule 12(b)(6), a court does not consider matters outside the
pleadings, but a court may consider on a motion to dismiss “the
facts alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint,” Gustave-Schmidt v.
Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), or “documents ‘upon
which the plaintiff’s complaint necessarily relies’ even if the
document is produced not by the plaintiff in the complaint but by
the defendant in a motion to dismiss,” Hinton v. Corr. Corp. of
Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (quoting Parrino v.
FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)), such as the
memorandum of reassignment attached as Exhibit 1 to the
Smithsonian’s motion to dismiss. (See Am. Compl. ¶ 24; Def.’s
Mem. Ex. 1.)
However, “where both parties submit material outside the
pleadings and ‘the parties are not taken by surprise or deprived
of a reasonable opportunity to contest facts averred outside the
pleadings and the issues involved are discrete’ legal issues, the
court may convert the motion to a motion for summary judgment
‘without providing notice or the opportunity for discovery to the
parties.’” Highland Renovation Corp. v. Hanover Insurance Group, -8-
620 F. Supp. 2d 79, 82 (quoting Tunica-Biloxi Tribe of La. v.
United States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008) and Smith
v. United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C. 2007)).
Summary judgment is appropriately granted when the moving
party demonstrates that there is no genuine issue as to any
material fact and that moving party is entitled to judgment as a
matter of law. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.
2009) (citing Fed. R. Civ. P. 56(c) and Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986)). “In considering a motion
for summary judgment, [a court is to draw] all ‘justifiable
inferences’ from the evidence . . . in favor of the nonmovant.”
Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189
(D.D.C. 2008) (quoting Anderson, 477 U.S. at 255); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The court must determine “whether there is a need for trial - -
whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.”
Citizens for Responsibility and Ethics in Wash. v. Bd. of
Governors of the Fed. Reserve, 669 F. Supp. 2d 126, 129 (D.D.C.
2009)(internal quotation omitted).
I. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Smithsonian moves under Rule 12(b)(1) to dismiss for
lack of subject matter jurisdiction the claim in Count I of -9-
Winston’s amended complaint regarding winston’s transfer to the
Suitland Zone. However, “‘[m]otions to dismiss for failure to
exhaust administrative remedies are . . . appropriately analyzed
under Rule 12(b)(6)’” for failure to state a claim for which
relief can be granted. Hairston v. Tapella, 664 F. Supp. 2d 106,
110 (D.D.C. 2009) (quoting Hopkins v. Whipple, 630 F. Supp. 2d
33, 40 (D.D.C. 2009)); see also Arbaugh v. Y & H Corp., 546 U.S.
500, 516 (2006) (“[W]hen Congress does not rank a statutory
limitation on [the statute’s] coverage as jurisdictional, courts
should treat the restriction as non-jurisdictional in
character.”); Douglas v. Donovan, 559 F.3d 549, 556 n.4 (D.C.
Cir. 2009) (“[T]he exhaustion requirement [under Title VII]
though mandatory, is not jurisdictional[.]”); Shipman v. Vilsack,
Civil Action No. 09-567 (RWR), 2010 WL 882647, at *2 (D.D.C.
March 12, 2010). “Moreover, [b]ecause untimely exhaustion of
administrative remedies is an affirmative defense, the defendant
bears the burden of pleading and proving it.” Battle v. Rubin,
121 F. Supp. 2d 4, 7 (D.D.C. 2000) (internal quotation omitted).
“Before filing a Title VII suit, a federal employee must
timely pursue [his] administrative remedies, following the
requirements set forth in 29 C.F.R. § 1614.” Hines v. Bair,
594 F. Supp. 2d 17, 22 (D.D.C. 2009). “If a plaintiff believes
that [he] has been unlawfully discriminated against, ‘[he] must
consult an EEO counselor in an effort to resolve the situation -10-
informally.’” Id. (citing 29 C.F.R. § 1614.105(a)). This
contact with the EEO counselor must occur within 45 days of the
alleged discriminatory incident. Id. (citing 29 C.F.R.
§ 1614.105(a)(1)). If informal counseling fails to resolve the
grievance, the employee then has 15 days from when the employee
receives notice that counseling has ended to file a written
complaint. See Chandler v. Bernanke, 531 F. Supp. 2d 193, 196
(D.D.C. 2008); 29 C.F.R. § 1614.106(b). After filing a written
complaint, the employee may file a civil action once the agency
issues an adverse final decision or 180 days elapse without a
decision, whichever happens first. See 42 U.S.C. § 2000e-16(c).
The procedural requirements governing a plaintiff’s right to
bring a Title VII claim in court are not treated as mere
technicalities, because it is “part and parcel of the
Congressional design to vest in the federal agencies and
officials engaged in hiring and promoting personnel ‘primary
responsibility’ for maintaining nondiscrimination in employment.”
Patterson v. Johnson, 391 F. Supp. 2d 140, 145 (D.D.C. 2006)
(quoting Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983)).
That said, Title VII’s purpose is remedial in nature, and time
limits are imposed principally to insure that employers receive
notice of complaints and have the ability to resolve the
situation before litigation is filed, which means that the time
limits are “subject to waiver, estoppel, and equitable tolling -11-
‘when equity so requires.’” See Morgan, 536 U.S. at 121 (quoting
Zipes, 455 U.S. at 398). The equitable power to toll a
limitation period should be exercised in “‘carefully
circumscribed instances.’” Norman v. United States, 467 F.3d
773, 776 (D.C. Cir. 2006) (quoting Smith-Haynie v. Dist. of
Columbia, 155 F.3d 575, 579-80 (D.C. Cir. 1998)); see also Brown
v. American Postal Workers Union, Civil Action No. 09-477 (RWR),
2009 WL 3380317, at *2 (D.D.C. October 19, 2009).
Count I of Winston’s amended complaint alleges that the
Smithsonian unlawfully discriminated against Winston based on his
race in part by transferring him to the Suitland Zone in
January 2006. (Am. Compl. ¶¶ 45-47.) The memorandum reassigning
Winston to the Suitland Zone made the reassignment effective as
of January 24, 2006, meaning that the 45-day deadline for
contacting an EEO counselor was March 10, 2006. (Def.’s Mem. Ex.
1.) However, Winston did not contact a counselor until April 27,
2006. (Am. Compl. ¶ 5.) Winston argues that the effective date
of his transfer to the Suitland Zone occurred on April 3, 2006,
when Bechtol issued her decision reversing the one-day
suspension. (Pl.’s Opp’n at 20.) However, a discrete
retaliatory or discriminatory personnel action occurs on the
“effective date of the action,” not on the date an internal
appeal of the action concludes. See 29 C.F.R. § 1614.105(a)(1)
(stating that “[a]n aggrieved person must initiate contact with a -12-
Counselor . . . , in the case of personnel action, within 45 days
of the effective date of the action”); Foster v. Gonzales, 516
F. Supp. 2d 17, 24 (D.D.C. 2007) (rejecting the plaintiff’s
arguments that the effective date of a personnel action is the
date of the completion of an internal appellate process and that
internal appeals toll the 45-day limitations period). Winston’s
transfer to the Suitland Zone was not contingent on any aspect of
the internal appellate process; Winston was transferred on
January 24. Thus, Winston’s contact with an EEO counselor on
April 27 regarding his transfer to the Suitland Zone was not
timely.
Winston, though, argues that the deadline for contacting the
EEO counselor regarding his transfer to the Suitland Zone should
be tolled because he was not notified of the time limits and was
not otherwise aware of them. “The agency or the Commission shall
extend the 45-day time limit . . . when the individual shows that
he or she was not notified of the time limits and was not
otherwise aware of them[.]” 29 C.F.R. § 1614.105(a)(2) (2005);
see also Norden v. Samper, 544 F. Supp. 2d 43, 46 (D.D.C. 2008)
(“A federal claimant is entitled to equitable tolling of the
45-day deadline to contact an EEO counselor if [he] can make a
showing that [he] was unaware of the time limit.”) (citing Harris
v. Gonzales, 488 F.3d 442, 445 (D.C. Cir. 2007)). An employee
arguing such unawareness is not “automatically entitled to an -13-
extension [where] the agency, through posters, employee
handbooks, orientation sessions, etc., made conscientious efforts
to advise its employees of the time limit.’” Norden, 544 F.
Supp. 2d at 46 (quoting Harris, 488 F.3d at 445). When a
defendant argues that it provided constructive notice of the 45-
day deadline to its employees, a court ordinarily undertakes a
“two-step inquiry: (1) whether notification of the time
requirements was provided, and (2) whether the notification was
reasonably geared to inform the complainant of the time limits.”
Harris, 488 F.3d at 445 (internal quotations omitted).3
However, the Smithsonian argues that Winston waived or
failed to exhaust any argument regarding lack of actual or
constructive notice by not raising it in his initial EEO
complaint or in his appeal before the EEOC’s Office of Federal
Operations (“OFO”), despite being represented by counsel during
those adversarial proceedings. (Def.’s Reply at 6.) Generally,
when courts review decisions reached in adversarial
3 The parties offer dueling affidavits from Smithsonian employees raising a genuine dispute about both factual prongs. (See Def.’s Reply, Ex. 12, claiming that a poster detailing the EEO grievance process was posted in Winston’s workplace; cf. Pl.’s Mot, Ex. 2 ¶ 3, claiming an employee never saw that poster posted anywhere in that workplace.) Under other circumstances, considering these materials outside of the pleadings would trigger summary judgment analysis, see Fed. R. Civ. P. 12(d), and the dispute would doom the Smithsonian’s motion. The affidavits are not reached, however, given the conclusion discussed below that Winston has waived his argument that he lacked notice of the 45-day time limit. -14-
administrative proceedings,4 they may expect that the parties
developed the issues below and “the rationale for requiring issue
exhaustion is at its greatest.” Sims v. Apfel, 530 U.S. 103, 110
(2000).5 “‘[A]s a general rule . . . courts should not topple
over administrative decisions unless the administrative body not
only has erred, but has erred against objection made at the time
appropriate under its practice.’” Woodford v. Ngo, 548 U.S. 81,
90 (2006) (quoting United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 37 (1952)).
Issue exhaustion stems from the common principle that an
objection which is not made in an adversarial administrative
proceeding is waived in a subsequent judicial proceeding. L.A.
Tucker Truck Lines, Inc., 344 U.S. at 37 (“[O]rderly procedure
and good administration require that objections to the
proceedings of an administrative agency be made while it has
opportunity for correction in order to raise issues reviewable by
the courts.”). The principle that an argument not raised in
4 There is no genuine dispute but that the OFO proceedings were adversarial given that the parties filed opposing briefs (Def.’s Reply Ex. 10) and both parties were represented by counsel. See also Nat’l Cas. Co. v. Forge Indus. Staffing, Inc., 567 F.3d 871, 877 n.1 (7th Cir. 2009) (describing EEOC proceedings as adversarial); Li-Lan Tsai v. Rockefeller Univ., 137 F. Supp. 2d 276, 282 (S.D.N.Y. 2001) (stating that “[f]iling an EEOC charge is an adversarial proceeding”). 5 By contrast, where an administrative proceeding is not adversarial, “the reasons for a court to require issue exhaustion are much weaker.” Sims, 530 U.S. at 114. -15-
administrative proceedings is waived in judicial proceedings has
been applied against an agency in a Title VII court action
following EEOC proceedings. See, e.g., Johnson v. Billington,
404 F. Supp. 2d 157, 162 (D.D.C. 2005) (holding that “when a
complaint has proceeded through administrative channels prior to
arriving at the federal courthouse, and the agency has accepted,
investigated and decided that complaint on its merits without
raising the exhaustion issue, the exhaustion defense may be found
to have been waived”).
Winston argues that he implicitly raised the issue of
constructive notice during his EEOC proceedings (Pl.’s Surreply
at 2), and, citing Herron v. Veneman, 305 F. Supp. 2d 64 (D.D.C.
2004), that he is entitled to raise issues here that were not
raised or decided below because plaintiffs challenging final
agency actions are entitled to a “full trial de novo.” (Pl.’s
Surreply at 3-4.) Neither argument is persuasive. First,
Winston did not argue anywhere in either his opening or reply
brief in the appeal6 that he was not provided notice of the
filing deadlines, and he therefore deprived the EEOC of having a
fair and full opportunity to consider the merits of the issue.
(See Def.’s Reply Ex. 10, Ex. 11.) Second, Herron does not
6 Because those briefs being considered are outside of the pleadings in this action, the Smithsonian’s motion on this issue will be treated as one for summary judgment. See Fed. R. Civ. P. 12(d). -16-
discuss or decide whether a plaintiff bringing a claim under
Title VII is required to raise issues during administrative
proceedings in order to preserve them in a district court action.
Instead, Herron held that following a final agency determination
of agency liability on a Title VII claim, a plaintiff in a civil
action “may not seek a limited de novo review of the remedy only
while binding the agency to a previous finding of discrimination”
and foreclose relitigation of liability. Herron, 305 F. Supp. 2d
at 76 (emphasis removed).
Whether the inquiry should be framed as one of issue
exhaustion or waiver, it is clear that Congress was determined to
foster among employing federal agencies full investigation and
resolution of discrimination complaints. See Kizas, 707 F.2d at
544 (noting that Congress directed federal employment
discrimination complaints to proceed initially before the agency
charged with discrimination because Congress vested in federal
agencies and their hiring officials “primary responsibility” for
preventing discrimination in employment). Winston said nothing
about lacking notice of the 45-day time limit in his EEO
complaint to the Smithsonian. The Smithsonian ruled that he had
failed to abide by the 45-day period, but among all the reasons
he raised for his untimeliness on appeal to the EEOC’s OFO, none
was that he lacked prior notice of the 45-day period. Not only
did he say nothing about it in his opening brief on appeal, and -17-
nothing about it in his reply brief, he said nothing about it
until filing his brief opposing the dismissal motion here over 18
months after his reassignment. At minimum, simple respect for
Congress’s aim and simple fairness to the agency suffice to deem
Winston’s argument that he lacked constructive notice of the 45-
day deadline for contacting an EEO counselor regarding his
transfer to Suitland waived at this late date.
On this issue, the material facts are not in dispute and the
Smithsonian is entitled to prevail as a matter of law.
Therefore, the Smithsonian’s motion to dismiss Count I as it
applies to Winston’s transfer to Suitland for failure to exhaust
administrative remedies, treated as a motion for summary
judgment, will be granted.7
II. FAILURE TO STATE A CLAIM OF DISCRIMINATION OR RETALIATION
The Smithsonian argues that the remainder of Count I and
Count II of Winston’s amended complaint should be dismissed
because Winston fails to state a claim of discrimination or
retaliation for which relief can be granted regarding his seven-
day suspension. (Def.’s Mot. at 1-2; Def.’s Mem. at 12; Def.’s
Reply at 12 n.6.) According to the Smithsonian, Winston’s claims
fail because the Smithsonian articulated legitimate, non-
discriminatory reasons for the suspension - - Winston’s failure
7 Winston’s motion for Rule 56(f) discovery will be denied. None of the discovery sought pertains to the one issue resolved by summary judgment. -18-
to carry out the instructions of his manager regarding the snow
removal, and Winston’s excessive use of his Smithsonian-issued
cellular telephone. (Def.’s Mem. at 14.)
The Smithsonian measures Winston’s complaint by a pleading
burden that the complaint does not carry. It is true that proof
of a discrimination or retaliation claim is governed by the
burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). That procedure requires the
plaintiff to prove a prima facie case, the employer to then
produce evidence of a legitimate, nondiscriminatory reason for
the adverse action, and the plaintiff to then show that the
reason offered was a pretext for discrimination. Id. at 802-04.
“None of this, however, has to be accomplished in the complaint
itself. Under Federal Rule of Civil Procedure 8(a)(2), a claim
need only contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’” Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000). A
complaint need not offer any evidence of pretext. Id.
The two elements a plaintiff must plead for a viable claim
of discrimination under Title VII are that “(i) the plaintiff
suffered an adverse employment action (ii) because of [his] race,
color, religion, sex, or national origin.” Brady v. Office of
the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008).
Winston has done this in Count I and supported the claim with -19-
factual allegations of racially disparate treatment. Winston
alleges in his amended complaint that the Smithsonian’s conduct
in “disciplining [Winston] and suspending him for seven days
without pay was motivated by Mr. Winston’s race and color in
violation of Title VII[.]” (Am. Compl. ¶ 46.) He adds that
other co-workers outside of Winston’s protected class used their
cell phones more than he did, yet none was suspended or
disciplined for it. (Am. Compl. ¶ 41.) Winston has adequately
pled that his 2007 suspension was unlawful discrimination.
The elements of a claim of retaliation are that the
plaintiff engaged in a statutorily protected activity, the
employer treated the plaintiff adversely, and a causal connection
existed between the two. Wiley v. Glassman, 511 F.3d 151, 155
(D.C. Cir. 2007); see also Rochon v. Gonzales, 438 F.3d 1211,
1216-20 (D.C. Cir. 2007); Iweala v. Operational Techs. Servs.,
634 F. Supp. 2d 73, 83 (D.D.C. 2009) (quoting Brown v. Brody, 199
F.3d 446, 452 (D.C. Cir. 1999) (internal quotation marks
omitted)). A plaintiff alleging retaliation faces a low hurdle
at the motion to dismiss stage, and need not present evidence of
pretext. See Rochon, 438 F.3d at 1219-20 (reversing the
dismissal of the plaintiff’s retaliation claim since a complaint
need not allege adverse treatment that is a personnel action, or
negate prospective alternative explanations for the cause of the
treatment). “‘Temporal proximity’ between a complaint of -20-
discrimination and an adverse action, such as termination, can
‘support a jury’s finding of a causal link.’” Iweala, 634 F.
Supp. 2d at 83 (quoting Patterson v. Johnson, 505 F.3d 1296, 1299
(D.C. Cir. 2007)) (quoting Sparrow, 216 F.3d at 1115).
The Smithsonian argues that Winston fails to state a viable
claim of retaliation regarding his seven-day suspension because
the lapse of time between Winston’s protected activity
(initiating the EEO process in June 2006) and the April 2007
suspension is too great to support an inference of discriminatory
retaliation. (Def.’s Mem. at 11.) However, a causal connection
between the protected activity and the adverse action is the
essential element of a retaliation claim; temporal proximity is
not. A complaint’s facts reflecting temporal proximity can be
probative of a causal connection, but are not required in order
to plead a retaliation claim. Winston can satisfy his burden to
plead a plausible claim of retaliation by providing facts showing
that he engaged in a protected activity and suffered an adverse
employment action, and alleging that he suffered the adverse
employment action as a result of the protected activity. See
Beckham v. Nat’l R.R. Passenger Corp., 590 F. Supp. 2d 82, 89
(D.D.C. 2008) (refusing to dismiss a retaliation claim where the
plaintiff “satisfied her burden by alleging that she was denied
benefits because of her opposition to actions made unlawful by
Title VII”); Vance v. Chao, 496 F. Supp. 2d 182, 187 (D.D.C. -21-
2007) (citing Twombly, and denying a motion to dismiss, stating
that at the motion to dismiss stage, “[the] plaintiff can meet
her prima facie [sic] burden simply by alleging that the adverse
actions [that were supported by facts in her complaint] were
caused by her protected activity”); Rhodes v. Napolitano, 656 F.
Supp. 2d 174, 187 (D.D.C. 2009) (rejecting argument that the
plaintiff’s retaliation claim failed to establish a causal
connection between protected activity that occurred in 2003 or
2004 and retaliatory action that occurred in 2007, because the
plaintiff’s allegation that the defendant initiated the
retaliatory action in response to her previous EEOC activity was
“sufficient to survive a motion to dismiss”); Dave v. Lanier,
606 F. Supp. 2d 45, 52-53 (D.D.C. 2009) (denying the defendant’s
motion to dismiss the plaintiff’s claim of retaliation because
“the plaintiff . . . made out a legally cognizable claim of
retaliation by contending that he engaged in a protected activity
by reporting the trainer’s allegedly discriminatory conduct and
that in response to his complaint, the defendant retaliated
against him by subjecting him to materially adverse actions”).
Moreover, “‘a close temporal connection is not the only way
to prove causation. A plaintiff may also put forward direct
evidence and disregard the presumption and its time
limitations.’” Rhodes, 656 F. Supp. 2d at 186 (quoting Beckham,
590 F. Supp. 2d at 89). The amended complaint alleges that Evans -22-
informed Winston, in response to a question about whether other
people were being punished for overusing their cellular
telephones, that “this is coming from downtown, and you and I
have talked about the fact that you know you don’t have any
friends from downtown.” (Am. Compl. ¶¶ 37-41.) Winston also
alleges that he was punished for excessive use of his cellular
telephone before the Smithsonian even issued guidelines regarding
use of such phones, and that other co-workers outside of
Winston’s protected class used their cell phones more than
Winston did, yet none was suspended or disciplined for it. With
all reasonable inferences from these factual allegations drawn in
Winston’s favor, this complaint amply alleges that his adverse
treatment was not only racially disparate but fueled by managers
whom he alienated by having filed a complaint in 2006. That
inference is bolstered by the allegation that the deciding
official, Bechtol, who issued the 2006 decision on the proposal
to suspend Winston for his conduct toward Gastright, was the same
person who issued the 2007 decision adopting the proposal to
suspend him for seven days. (Id. ¶¶ 42-43.) Thus, Winston’s
amended complaint sufficiently alleges a claim of retaliation
that is plausible on its face, and Count II of Winston’s amended
complaint survives. -23-
III. HOSTILE WORK ENVIRONMENT
The Smithsonian moves to dismiss Count III of Winston’s
amended complaint, in which Winston alleges that as a “result of
the above-referenced retaliatory and/or discriminatory conduct,
the Defendant has subjected the Plaintiff to a hostile
environment based on discrimination and/or retaliation, in
violation of Title VII[.]” (Am. Compl. ¶ 52.) The Smithsonian
argues that Count III should be dismissed because Winston is
impermissibly attempting to bootstrap discrete acts of
discrimination into a hostile work environment claim. (Def.’s
Mot. at 17.)
To state a hostile work environment claim, Winston must
allege that “he suffered harassment because of his membership in
a protected class . . . [,] that [his employer] knew or should
have known of the alleged harassment and failed to take remedial
action[,]” King v. Pierce Assocs., 601 F. Supp. 2d 245, 248
(D.D.C. 2009) (citing Davis v. Coastal Int’l Sec., Inc., 275 F.3d
1119, 1122-23 (D.C. Cir. 2002)), and that it interfered with his
work. See Roberson v. Snow, 404 F. Supp. 2d 79, 97 n.8 (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal
quotation marks omitted)); see also Faragher v. Boca Raton, 524
U.S. 775, 788 (1998). “A hostile work environment exists when
‘the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to -24-
alter the conditions of the victim’s employment and create an
abusive working environment[.]’” Roberson, 404 F. Supp. 2d at 97
n.8.
Here, Count III of Winston’s amended complaint incorporates
all the factual allegations preceding it, as well as the
allegations of Counts I and II, into his hostile work environment
claim. The allegations preceding Counts I and II range from
facing unsubstantiated allegations that he threatened violence
against a co-worker, to being evicted from his workspace and
barred from meetings, to being stripped of supervisory duties and
banished to cramped work space, to facing a proposed suspension
that was later overruled. (Am. Compl. ¶¶ 22, 23, 25, 26.) While
the Smithsonian questions whether Winston’s use of discrete acts
of discrimination to fashion a hostile work environment claim
could eventually withstand the scrutiny of summary judgment,8 a
plaintiff filing an employment discrimination complaint is
ordinarily not subject to a heightened pleading standard,9 and is
8 Cf. Rattigan v. Gonzales, 503 F. Supp. 2d 56, 82 (D.D.C. 2007); Nurridin v. Goldin, 382 F. Supp. 2d 79, 108 (D.D.C. 2005); Lester v. Natsios, 290 F. Supp. 2d 11, 31-32 (D.D.C. 2003). 9 See Sparrow, 216 F.3d at 1118 (“We understand why district courts may want to alleviate their crowded dockets by disposing quickly of cases that they believe cannot survive in the long run. But . . . this may not be accomplished by employing heightened pleading standards . . . . Rather, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.”) (internal quotation marks omitted). -25-
not required to plead a prima facie case of discrimination or
retaliation in his complaint, Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002); Rattigan v. Gonzalez, 503 F. Supp. 2d 56,
78 (D.D.C. 2007); Smith-Thompson, 657 F. Supp. 2d at 129 (citing
Swierkiewicz, 534 U.S. at 511-514 (2002)), or to “plead law or
match facts to every element of a legal theory.” Krieger v.
Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation
and citation omitted); see also Ali v. Dist. of Columbia, Civil
Action No. 08-1950 (HHK), 2010 WL 1068096, at * 3 (D.D.C. March
24, 2010) (denying motion to dismiss the plaintiff’s hostile work
environment claim, even though “it [was] unlikely that [the
plaintiff’s] claims of discrimination will ultimately prove
meritorious”). Historically,
[t]he D.C. Circuit has long recognized the ease with which a plaintiff claiming employment discrimination can survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. “Because racial discrimination in employment is a claim upon which relief can be granted, . . . ‘I was turned down for a job because of my race’ is all a complaint has to state to survive a motion to dismiss under [Rule] 12(b)(6).”
Rouse v. Berry, Civil Action No. 06-2088 (RWR), 2010 WL 325569,
at *3 (D.D.C. January 29, 2010) (quoting Potts v. Howard Univ.
Hosp., 258 Fed. Appx. 346, 347 (D.C. Cir. 2007)). Even today,
all that is required of the amended complaint at this stage is
that it provide enough factual heft to show a plausible
entitlement to relief; that is, that it contain “enough facts to -26-
[nudge] a claim to relief . . . across the line from conceivable
to plausible[.]” Twombly, 550 U.S. at 570.10 Winston’s claim,
construed in the light most favorable to him despite its sparse
nature, sufficiently alleges facts that could be probative of a
discriminatory hostile work environment by incorporating the
purportedly discriminatory conduct that Winston experienced, and
asserting that the discriminatory conduct constituted a hostile
work environment. See Holmes-Martin v. Leavitt, 569 F. Supp. 2d
184, 193 (D.D.C. 2008) (denying the defendant’s motion to dismiss
the plaintiff’s claim of hostile work environment because the
plaintiff “alleged some conduct in support of her claim,” and
noting that a plaintiff is required to plead facts which
“support,” not “establish,” the claim). Therefore, the motion to
dismiss Count III of Winston’s amended complaint will be denied.
CONCLUSION AND ORDER
Winston failed to exhaust his administrative remedies
regarding his transfer to the Suitland Zone. However, Winston
adequately alleges claims of discrimination and retaliation
regarding his seven-day suspension, and of a hostile work
environment. Therefore, it is hereby
10 Justice Thomas’s unanimous Swierkiewicz opinion, cited in and undisturbed by Twombly, 550 U.S. at 569-70, is still good law. Notably, the Smithsonian does not attack Winston’s complaint as insufficient under Twombly, a case decided well before the Smithsonian filed its motion to dismiss. -27-
ORDERED that the defendant’s motion [10] to dismiss or for
summary judgment be, and hereby is, GRANTED in part and DENIED in
part. Judgment is granted to the defendant on the portion of
Count I of Winston’s amended complaint that pertains to Winston’s
transfer to the Suitland Zone. The remainder of the motion is
denied. It is further
ORDERED that Winston’s motion [17] for leave to file a
surreply and for Rule 56(f) discovery be, and hereby is, GRANTED
in part and DENIED in part. Leave to file a surreply is granted
and the request for Rule 56(f) discovery is denied. It is
further
ORDERED that Winston’s motion [19] for a hearing be, and
hereby is, DENIED as moot.
SIGNED this 11th day of May, 2010.
/s/ RICHARD W. ROBERTS United States District Judge